Background
Reynaldo Rosa-Borges had previously been sentenced to prison and supervised release for possessing a firearm in furtherance of a drug trafficking crime. After violating his supervised release terms by possessing controlled substances and altering a urine sample, he was placed on an action plan. Later, police seized a loaded pistol and ammunition from his vehicle and home. He was indicted for possession of a firearm by a prohibited person and pleaded guilty. During his initial sentencing, the court relied on hearsay from his brother regarding ammunition ownership, which the First Circuit previously vacated in a prior decision. On remand, the district court imposed a new sentence, citing local crime rates, the amount and type of ammunition, and the fact that this was his second firearms offense.
The court’s reasoning
The court held that the district court committed a procedural error by relying on a legally invalid rationale to impose an upward variance. Specifically, the court found that possessing thirty-one rounds of ammunition is consistent with simple possession and cannot justify an upward variance. Furthermore, the court found clear error in the district court’s finding that the ammunition was the type used by NATO countries for firearms of war, as there was no evidence in the record to support this. The court determined this error was not harmless because the district court relied on multiple factors, including the invalid ammunition rationale, to impose the sentence. Regarding the revocation sentence, the court found that the defendant waived his challenges because he failed to preserve the specific procedural arguments in his appellate brief.
What it means going forward
Defendants in the First Circuit can no longer rely on the amount of ammunition alone to justify an upward variance if it is consistent with simple possession. Sentencing courts must ensure that any factual findings regarding ammunition type are supported by evidence in the record. Defendants must carefully preserve and develop procedural arguments in their appellate briefs to avoid waiver of sentencing challenges.
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